COURT OF APPEALS DECISION DATED AND FILED July 29, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Curley, P.J., Wedemeyer and Fine, JJ.
¶1 PER CURIAM. Vernon Henrique Walker appeals from an order denying his postconviction motion for a new trial. The issue is whether the supreme court’s decision in State v. Dubose, 2005 WI 126, ¶33, 285 Wis. 2d 143, 699 N.W.2d 582, applies retroactively to Walker’s 1997 judgment from which he seeks collateral review. We conclude that Dubose does not meet either of the two exceptions that merit its retroactive application on collateral review. Therefore, we affirm.
¶2 A jury found
¶3
¶4 Preliminarily,
¶5 Dubose does not explicitly hold whether it applies retroactively. Under these circumstances, the new rule (the Wisconsin Supreme Court’s holding in Dubose) does not apply retroactively on collateral review.
New rules merit retroactive application on collateral review only in two instances. In the first instance, a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe. Second, a new rule should be applied retroactively if it requires observance of those procedures that are implicit in the concept of ordered liberty.
State v. Howard, 211 Wis. 2d 269, 282, 564 N.W.2d 753 (1997) (citations and internal quotation marks omitted), overruled on other grounds by State v. Gordon, 2003 WI 69, ¶5, 262 Wis. 2d 380, 663 N.W.2d 765.
¶6 Dubose does not meet either of the two exceptions that merit
retroactive application on collateral review.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Dubose
was decided more than nine months after